Fraser v. Adduri, 2012 MBCA 53

Citation: Fraser v. Adduri, 2012 MBCA 53 Date: 20120518 Docket: AI 11-30-07707 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN : ) D. L. Fraser DOUGLAS LESLIE FRASER ) on his own behalf ) (Plaintiff) Appellant ) H. D. Van Iderstine and ) B. Salnave - and - ) for the Respondent ) ) Appeal heard: V. RAO ADDURI ) May 14, 2012 ) (Defendant) Respondent ) Judgment delivered: ) May 18, 2012 CHARTIER J.A. 1 The self- represented plaintiff appeals the decision of the motions judge dismissing, by way of

summary judgment, his negligence claim against the defendant physician. 2 The defendant physician is an orthopaedic surgeon. The plaintiff sought treatment from the defendant physician , complaining of increasing pain and stiffness to his left hip. After several visits spanning a six-month period, the defendant physician performed a total left hip replacement surgery on the plaintiff . Following the surgery, the plaintiff developed symptom s including a noticeable foot-drop.

Consequently the plaintiff sued, alleging that the defendant physician was negligent in the performance of the surgery and in his post-operative care and claiming, among other things, injury to the sciatic nerve. 3 The defendant physician moved for and obtained

summary judgment before a master. The plaintiff appealed to a motions judge in the Court of Queen ’ s Bench. The motions judge also dismissed, by way of

summary judgment, the plaintiff ’ s negligence claim. The plaintiff now appeals that decision. 4 The decision to grant or refuse

summary judgment is an exercise in judicial discretion and is owed significant deference. If there has been no error in principle (to be reviewed on the correctness standard) and no error on a question of mixed fact and law and/or a question of fact (to be reviewed on the palpable and overriding error standard), this court cannot and will not interfere with the discretionary decision of the motions judge unless it is so clearly wrong as to amount to an injustice (see Towers Ltd. v. Quinton’s Cleaners Ltd. et al. , 2009 MBCA 81 at paras. 24-28 , 245 Man.R. (2d) 70). 5 In his reasons, the motions judge correctly stated the legal principles to be applied when a defendant brings a motion for

summary judgment. He clearly understood the legal issues arising from the evidence. Critical to his decision was his finding that the defendant physician had proven, on a prima facie basis, that the plaintiff’s action must fail. At that point, the onus shifted to the plaintiff to establish that there was a genuine issue for determination (see Homestead Properties (Canada) Ltd. v. Sekhri et al. , 2007 MBCA 61 at para. 14 , 214 Man.R. (2d) 148 ). 6 The essential elements of the tort of negligence have long roots: there must be a duty of care owed; there must be evidence that there was a breach of the duty by the defendant; and that breach must cause the proven loss or damage.

7 In the instant case, t here is significant evidence confirming that the plaintiff’s problems relate to damage to the sciatic nerve during the hip replacement surgery. In fact, the defendant physician acknowledges this. However, there is an important legal distinction in a negligence claim between what caused the plaintiff’s medical condition and whether that condition was brought about due to a breach of a duty of care owed by the physician. Not only must the physician cause the plaintiff’s symptoms, it must be shown that the physician was negligent in doing so.

This requirement is necessary to differentiate negligence cases from situations where, despite appropriate medical care, negative side effects or consequences resulted. 8 To succeed, the plaintiff had to show that the defendant physician did not meet the standard of care established by law. That type of evidence is generally brought forward in the form of an expert report from another physician practising in the same field.

Prior to the hearing before the motions judge, the plaintiff had been told, in no uncertain terms, that he was lacking cogent evidence on the issue of the breach of a standard of care (see p. 3 of the decision of the master). The motions judge also noted in his reasons that the plaintiff had been told, by the judge who set the date for the hearing in the Court of Queen ’ s Bench, to seek legal advice before proceeding any further.

Despite these cautions , the plaintiff failed to obtain or provide any evidence that the defendant physician breached the standard of care. 9 At the hearing before this court, it was clear that the plaintiff had not yet taken in the difference between the cause of symptoms (which is not in issue) and whether the physician who caused those symptoms breached a standard of care in so doing. 10 The only evidence before the motions judge on the critical standard of care issue was the defendant physician’s expert report, which stated that the defendant physician met the standard of care expected of an orthopaedic surgeon in all aspects of the treatment he provided to the plaintiff.

Moreover, that report confirmed that an injury to the sciatic nerve, which is the injury suffered by the plaintiff, is a known complication occurring in one to two per cent of all total hip replacement surgeries. 11 The plaintiff never argued before the motions judge that he was not made aware of these complications prior to the surgery. In fact, the defendant physician’s notes show that, approximately a month before the surgery, he discussed with the plaintiff possible complications arising from the surgery.

The plaintiff acknowledges in his own factum, first, that his problems arise from the sciatic nerve injury caused during the hip replacement surgery and, second, that this type of injury is a known risk, albeit rare, in such surgeries. 12 Thus, while the defendant physician owed a duty of care to the plaintiff, there was no evidence before the motions judge that there was a breach of that duty.

In the end, the motions judge was not satisfied that there was a genuine issue for determination or, put another way, was not convinced that the plaintiff’s claim was “one with a real chance of success” ( Homestead Properties at para. 14). 13 In my view, the plaintiff has not demonstrated any error in principle by the motions judge or any palpable and overriding error with respect to the facts and the evidence referred to in his analysis. In light of this, there is simply no basis to interfere with the motions judge’s exercise of discretion.

In fact, there was no other possible decision on the evidence presented. 14 I would dismiss t he appeal with costs. J.A. I agree: C.J.M. I agree: J.A.